Supreme Court considers routine strip searches in jails

WASHINGTON — Albert Florence, a New Jersey father who was on his way to a family dinner, was stopped by a state trooper, handcuffed, taken to jail and strip searched, all because of a fine he had already paid.

The Supreme Court took up his case Wednesday, not to focus on his mistaken arrest but to decide whether the 14 million Americans who are arrested each year can be strip searched and closely examined before they enter a jail.

The Fourth Amendment forbids “unreasonable searches” by the government, and a lawyer for Florence urged the justices to rule that arrestees headed for a cell cannot be closely inspected unless there is a “reasonable suspicion” that they are dangerous.

The justices, however, sounded torn by the difficulty of setting a rule that would affect all jails.

Justice Anthony M. Kennedy commented that “county jails are more dangerous than penitentiaries because you don’t know who these people are. You arrest them for a traffic [offense] and they may be a serial killer. You don’t know.”

But other justices said they were troubled by routinely subjecting people to a “visual body cavity” search. Justice Samuel A. Alito asked about motorists who were arrested for a traffic violation. He questioned whether a strip search of such a person is reasonable.

Lawyers for two New Jersey counties and for the Obama administration warned the justices against putting a constitutional limit on jailers. They said there is a constant danger that weapons or drugs may be smuggled into a jail.

“There is no reasonable expectation of privacy in prison,” said attorney Carter Phillips, and jailers need to be able to closely inspect anyone who will be entering the jail as an inmate.

“If they guess wrong [on who poses a danger], the mistakes can be deadly,” said Nicole Saharsky, an assistant U.S. solicitor general. She said the justices should defer to jailers and allow officials to enforce a “blanket policy” of closely inspecting all new inmates.

By the end of the hour, both sides in the dispute agreed that all entering inmates can be forced to take off their clothes and take a shower under the watchful eye of a jail guard. This is routine and apparently acceptable, they said. The two sides disagreed, however, over whether a guard can closely inspect each person’s body cavities.

Justice Antonin Scalia questioned whether the court should try to limit such searches. You want us to write an opinion that “applies only to squatting and coughing?” he asked one lawyer.

Federal courts around the country have been split over strip searches in jails.

The 9th U.S. Circuit Court of Appeals upheld San Francisco’s policy of strip searching all new inmates, but courts in other regions have ruled that such close searches are unreasonable for people picked up for minor offenses.

In Albert Florence’s case, a federal judge ruled his rights were violated, but the U.S. Court of Appeals in Philadelphia disagreed. It said the need to ensure safety and security in the jail outweighed the privacy rights of newly arrested individuals.

It will be several months before the high court hands down a decision. Regardless of how the justices rule on his privacy claim, Florence still has a pending claim that he was wrongly arrested.